07/18/2017
DA 16-0412
Case Number: DA 16-0412
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 178N
IN RE THE MARRIAGE OF:
DELYNN ARNESON AXELBERG,
Petitioner and Appellant,
And
TRACY A. AXELBERG,
Respondent and Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DR-11-357
Honorable David M. Ortley and Honorable Robert B. Allison,
Presiding Judges
COUNSEL OF RECORD:
For Appellant:
Delynn Arneson Axelberg, self-represented, Kalispell, Montana
For Appellee:
Tracy A. Axelberg, self-represented, Missoula, Montana
Submitted on Briefs: May 31, 2017
Decided: July 18, 2017
Filed:
__________________________________________
Clerk
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Delynn Arneson Axelberg (Delynn) appeals from the orders entered by the District
Court1 addressing post-decree concerns between her and Tracy Allan Axelberg (Tracy) in
this dissolution proceeding. We affirmed the District Court’s findings of fact, conclusions
of law, and decree in In re Marriage of Axelberg, 2015 MT 110, 378 Mont. 528, 347 P.3d
1225. The parties were married in September 1998, separated in February 2010, and their
marriage was dissolved by decree in May 2014. They have two minor children, A.M.A.
and A.Z.A.
¶3 As summarized by the District Court, “Delynn and Tracy have engaged in an
ongoing dispute over the distribution of the marital assets awarded to Delynn under the
Decree and issues related to the Final Parenting Plan.” Motions were filed regarding issues
related to property and the parenting plan, and for contempt. The District Court conducted
a status conference regarding pending issues in May 2015. Tracy appeared at the
conference; no appearance was made by or on behalf of Delynn.2 A hearing to address the
1
Hon. Judge David M. Ortley presided over this matter through the entry of the order appointing
the receiver. Thereafter, Hon. Robert B. Allison presided.
2
Both parties appear pro se; both are licensed attorneys.
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motions was set and, at Delynn’s request, continued to a later date. Finally, on
November 16, 2015, the parties appeared to address the motions. At the hearing, Delynn
asked for another continuance, indicating she was ill and unable to properly argue her
position. The District Court stated it would proceed, but would entertain additional
arguments from Delynn if she wished to submit them later. Delynn stayed and offered
evidence and argument during the hearing. The District Court found that “Delynn and
Tracy have impeded distribution of the marital estate and violated provisions of their
parenting plan,” and noted there was hostility and an “increasingly antagonistic” tone
between the parties. At the hearing, the District Court raised the possibility of appointing
a receiver to oversee the distribution of the marital estate, to which the parties offered
generally positive feedback. After giving the parties additional time to submit written
argument, the District Court appointed a receiver and tasked him with distributing the
marital estate. The District Court also entered orders regarding distribution of asset
proceeds, reimbursement of childcare expenses, and contempt. The District Court denied
a motion by Delynn for a new trial.
¶4 On appeal, Delynn challenges the District Court’s denial of her request for a
continuance, its orders regarding the marital estate and parenting plan, including the
appointment of a receiver, and the denial of her motion for a new trial. Delynn frames her
issues and arguments as violations of due process. While we recognize procedural
concerns can rise to a constitutional level and require plenary review, district courts
generally have discretion to control the proceedings before them. See In re J.S.W., 2013
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MT 34, ¶ 20, 369 Mont. 12, 303 P.3d 741; State v. Couture, 2010 MT 201, ¶ 78, 357 Mont.
398, 240 P.3d 987. We believe the District Court’s rulings here fall within its discretionary
authority and are reviewed for abuse of discretion. Steer, Inc. v. Dept. of Revenue, 245
Mont. 470, 475, 803 P.2d 601, 603-04 (1990). “A district court commits an abuse of
discretion when it acts arbitrarily without conscientious judgment or exceeds the bounds
of reason.” Martin v. BNSF Ry. Co., 2015 MT 167, ¶ 10, 379 Mont. 423, 352 P.3d 598
(citation omitted).
¶5 Delynn argues the District Court dismissed her motions “without a fair and
meaningful hearing based on form rather than purpose” and erred by denying the
continuance she had requested “due to medical incapacity, requiring her to proceed to
defend issues impacting the final distribution of the marital estate.” The District Court
granted Delynn’s initial request to reschedule the hearing, in part to accommodate her
medical condition, as well as her desire to obtain legal counsel and have additional time to
prepare for the hearing. The District Court then conducted the hearing at the time it was
rescheduled, but stated it was dismissing Delynn’s motions without prejudice and granted
her additional time to renew the motions and to file additional briefing. We conclude the
District Court did not abuse its discretion and ensured that Delynn was not unfairly
prejudiced by the manner in which it conducted the proceeding.
¶6 Delynn argues the District Court erred by retroactively modifying child support and
expense contributions “without a hearing and contrary to the best interests of the children.”
We conclude the record does not support this assertion. Delynn claimed she was entitled
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to a reimbursement of all childcare costs from 2011 onward. In its order, the District Court
considered Delynn’s claim and partially granted it, grounding the decision on (1) the terms
of the Final Parenting Plan allocating the childcare and maintenance costs; (2) the childcare
cost evidence presented by Delynn; and (3) the fact that Delynn and Tracy had previously
“settled post-separation debts for childcare and maintenance expenses through
February 2012.” After consideration, the District Court held Delynn was entitled to
reimbursement for costs incurred from March 1, 2012 to March 10, 2016, the date of her
petition. We conclude the District Court did not abuse its discretion.
¶7 Delynn argues the District Court erred by appointing a receiver “without
an application or hearing to determine the necessity of such appointment” and violated
§§ 27-20-102 and -201, MCA. Section 27-20-102(5), MCA, authorizes a district court to
appoint a receiver “after judgment, to carry the judgment into effect.” Here, the District
Court concluded the parties had impeded the distribution of the martial estate, necessitating
the appointment of a receiver to implement the provisions of the decree. While Delynn
now distances herself from the positive responses she made at the hearing, the situation
was appropriate for a receiver, and the District Court did not err in raising the issue during
the hearing, obtaining the parties’ responses, and ultimately appointing a receiver.
¶8 Lastly, Delynn argues the District Court erred by denying her motion for a new trial
pursuant to M. R. Civ. P. 59(e). The District Court reasoned:
[Delynn’s petition] is not properly brought pursuant to Rule 59 . . . as the
Order being challenged was not the result of either a jury or non-jury trial
nor is it a judgment. . . . The post decree motions dealt with in the April 14,
2016 Order invoked the Court’s continuing jurisdiction over modification
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and enforcement of the decree of dissolution. Because the Court retains
jurisdiction over this matter, the April 14, 2016 Order is an interlocutory
Order.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. This appeal presents
no constitutional issues, no issues of first impression, and does not establish new precedent
or modify existing precedent. The District Court did not abuse its discretion, and its
interpretation and application of the law were correct.
¶10 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
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